Row over Yelp review menaces web immunity

Analysis Tech giants and rights groups have flooded the California Supreme Court with a dozen friend-of-the court briefs pleading for the reversal of a defamation ruling that threatens online speech protections.

First, rewind to 2013, when a woman by the name of Ava Bird allegedly posted a negative review of San Francisco attorney Dawn Hassell on Yelp.

Hassell sued Bird for defamation and, a year later, won more than half a million dollars in damages in a default judgment – the defendant was not present in court because, her attorneys claim, she was not notified of the lawsuit.

Besides the pay out, Hassell also won an order directing Yelp to remove Bird's reviews despite the fact that the website allows its users to delete their own posts. This is, as we will explain later, a crucial point in the case. Basically, Yelp was not a party in the legal row between the attorney and her client but ended up being ordered to censor its website without a chance to defend itself in court.

In a phone interview with The Register, Eric Goldman, professor of law at Santa Clara University School of Law, said that when the United States was founded, one of the objections to English rule was court hearings held without the awareness of involved parties. Proper notification of court proceedings is central to our concept of adverse legal process, he said.

In November 2016, after the judgment against Bird was upheld by a California appeals court, and the state's supreme court agreed to review the case, San Francisco-based Yelp filed a brief calling for the judge's decision to be scrapped.

Yelp argued that because it was not involved in the initial litigation, the court order directing it to remove Bird's posts violates the company's First Amendment, due process, and Section 230 rights.

Section 230 of the Communications Decency Act immunizes online service providers from the actions of third-parties, as long as they take certain steps to preserve this protection. Without it, internet companies would be unlikely to post any user-generated content out of fear of being bombarded with lawsuits.

"Section 230 immunity plays a vital role in the legal landscape that has allowed the internet to flourish," Yelp said in its court filing.

Goldman, in a blog post on Thursday, said if the ruling survives, it would establish a way to bypass Section 230 and "create a synthetic right to be forgotten in the US."

Censoring the web without due process

Over the phone, Goldman – who serves on the board of one of the advocacy groups seeking to reverse the case and joined in one of the amicus briefs – explained that the appeals court ruling enables anyone who has a default judgment of this sort to take the resulting court order to a search engine and demand the removal of offending content without the usual due process.

"It's perhaps less impactful than the European right to be forgotten because the barriers to entry would be higher," Goldman said. "You have to spend thousands of dollars [in court] to take advantage of this right to be forgotten. But the consequences for the degradation of the credibility of content is just as high with this ruling as it is with the EU rules."

A single amicus brief was filed in support of the plaintiff. One of the attorneys involved is Charles Harder, who Goldman notes, "is well-known for recent defamation lawsuits, including the lawsuits funded by Peter Thiel that shut down Gawker and the pending suit against Techdirt in the 'who invented email?' lawsuit."

Goldman doesn't expect the California Supreme Court to deal with the case for a few months, but he believes the ruling has the potential to normalize the scrubbing content from the internet, even truthful content. That's because a default judgment does not provide the same evaluation of a defamation claim as a court proceeding where the defendant is present to contest the charge.

"There is a large and growing community of businesses and consultants looking for legal tools to shut down online content," Goldman said. "If the ruling were to stand, there would be law firms and consultants charging thousands to scrub content from the internet." ®